Court of Appeal (Vic)|2012-08-24|Before: Mr J, Redlich JA, Harper JA

NOM v DPP & Ors [2012] VSCA 198 (24 August 2012)

Interaction between s 39 and s 40(1) - Weight to be given to factors in s 40(1)(c) and (d) - Meaning of 'endanger' - Assessment of probability of risk of harm to community or appellant - Evaluation of the likelihood of risk materialising rather than gravity of harm if risk eventuated - Degree of restrictions on appellant's autonomy - Whether restrictions the minimum necessary for avoidance of risk - When liberty of individual to be optimised - Appellant at low risk of re-offending.

Burden of proof - Rules of evidence inapplicable - Section 38 - No legal or evidential onus on any party - Common sense approach to evidence - Standard of proof - Whether principle of Briginshaw (1938) CLR 336 applied to determination of future risk - Section 140 of the Evidence Act 2008 (Vic) - Whether applicable to such proceedings - Statutory standard of proof - Actual persuasion on the part of fact-finder - Section 140(2) Evidence Act and principle in Briginshaw.

Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 ss 33, 35, 38, 39, 40 - Uniform Evidence Act ss 8, 140 - RDM v DPP & Ors [1999] VSCA 86; [1999] 2 VR 270; Dr Butler v Fourth Medical Services Review Tribunal (1997) 47 ALD 647; McDonald v Director-General of Social Security [1984] FCA 57; (1984) 1 FCR 354 applied. In Re SKD [2009] VSC 363 discussed.

In the matter of LN [1999] VSC 144, In the matter of TDD [2001] VSC 389 overruled in part.

1 In September 1988, after a trial by jury, the appellant was found not guilty of murder by reason of insanity. He was ordered to be detained at the Governor's pleasure. Since the commencement of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (the Act), he has been subject to custodial and non-custodial supervision orders.

2 In August 2010 a review of the appellant's non-custodial supervision order fell due. The appellant unsuccessfully applied for revocation of the order. He now appeals against that decision.

3 The appeal raises fundamental questions concerning the nature of proceedings to impose or revoke supervision orders under the Act, the role of the Secretary to the Department of Health and the Attorney-General in such proceedings, the onus and standard of proof, the interpretation of, and interaction between, the criteria and general principles relevant to revoking supervision orders under the Act and whether the decision to refuse to revoke the supervision order was correct.

4 For the reasons that follow, we would allow the appeal and revoke the non-custodial supervision order.

5 In November 1987 the appellant, then aged 25, was charged with murder. At the time of this incident, he had not been diagnosed with any mental impairment.

6 Only a brief summary of the appellant's personal circumstances prior to this incident is necessary. The appellant had a happy childhood. His father passed away when he was ten years old and shortly after completing an engineering apprenticeship, his mother died. In his early twenties he began using drugs and became unemployed.

7 The appellant was first diagnosed with paranoid schizophrenia whilst in prison. He was prescribed antidepressant and antipsychotic treatment for his illness but experienced significant side effects. He was transferred to various psychiatric institutions from October 1989 onwards. Eventually he was granted an extended leave of absence in December 1991, the first of many to follow. During these periods of leave the appellant required numerous readmissions in the context of breaching leave conditions, including non-compliance with medication regimes, relapse into psychosis and intermittent cannabis abuse.

8 By 18 April 1998 the entire Act had come into effect. Under Schedule 3 persons such as the appellant became subject to a custodial supervision order. The nominal term of the appellant's supervision order expires on 18 September 2013 pursuant to clause 2(2) of Schedule 3 to the Act. The nominal term reflects the maximum available sentence of 25 years for the index offence which led to the appellant's custody in the first place.

9 On 9 March 1999 Hampel J varied the appellant's custodial supervision order to a non-custodial supervision order. His Honour made the order satisfied that, among other things, the appellant's recent history did not disclose any major incidents of relapse and that his behaviour did not demonstrate 'the degree of dangerousness which the Act is concerned to avoid.'[1]

10 The period of relative freedom was, however, short lived. After having met a woman at a petrol station in September 1999, the appellant proceeded to follow her in his car. This led to a confrontation with the woman's partner. The appellant was charged with stalking and was convicted and sentenced in the County Court to six months' imprisonment with the sentence wholly suspended. On another occasion he verbally abused and pushed one of his co-residents. These and allied events led to charges of dangerous driving and reckless endangerment. By order of Eames J on 2 March 2000 his non-custodial supervision order was revoked and a custodial supervision order reinstated.[2] In his reasons for judgment, Eames J said:

Although [the appellant] himself does not completely accept that he is ill, he clearly is. He is also facing a series of new stresses that will impact on his need for monitoring and treatment... Additionally, he has to face the considerable stresses of the criminal proceedings... [The psychiatrist called on his behalf at the hearing] said that it would be appropriate for there to be a fairly high level of vigilance and management in the immediate future. I agree, and that can only be obtained, in my opinion, by revoking the non-custodial supervision order and substituting instead a custodial supervision order under s.29(4) of the Act. Accordingly, I will order that the non-custodial supervision order made on 9 March 1999 be revoked and I will order that [the appellant] be placed on a custodial supervision order...

It is important to note that the revoking of the non-custodial order does not mean that [the appellant] must remain hereafter on a custodial supervision order. The doctors made it clear that their object would be that he once again progresses to the point where he can successfully apply to the court for variation of his order to a non-custodial order.[3]

11 On 23 March 2000 the appellant commenced clozapine treatment. By all accounts, this drug appears to have marked a turning point in the treatment of the appellant's mental illness. Since taking the drug his treating team has consistently reported that the appellant's mental impairment has stabilised. He was granted extended leave from custodial supervision in October 2005 by Osborn J.[4] The leave was renewed by Kellam J in August 2006 and Osborn J in November 2007.[5] During these periods of leave the appellant was said to have demonstrated excellent progress.

12 The appellant successfully applied for variation of the custodial supervision order to a non-custodial supervision order in 2008 before Kyrou J.[6] After having considered largely uncontested expert evidence from the appellant's psychiatrist and case manager, Kyrou J said:[7]

Having regard to the evidence available, I am satisfied to the requisite degree, that neither the safety of the applicant nor that of members of the public would be seriously endangered as a result of the release of the applicant on a non-custodial supervision order. In forming this view, I have carefully considered the historical risk factors identified by [the consultant forensic psychiatrist] and other matters of concern which are disclosed by the history of this matter as recorded in previous judgments and rulings of this Court. In particular, I have had regard to the applicant's index offence of homicide, his later stalking conviction, a reported assault by him, his history of drug misuse, and his significant history of past supervision failures. However, none of those concerns arise from any recent actions of the applicant. [The applicant's consultant forensic psychiatrist] and [case manager] gave evidence that the applicant has made steady progress since 2000. They both attributed much of that progress to the applicant's current pharmacological treatment of clozapine, and both expressed confidence that no serious endangerment would be caused by a variation of the order to a non-custodial supervision order. The applicant has been granted extended leave since October 2005 and I am satisfied on the evidence before me that he has complied with the conditions of his extended leave.

13 Kyrou J ordered that the non-custodial supervision order be reviewed two years from the date of variation.[8] Since the variation the appellant has demonstrated further progress in managing his impairment by, among other things, remaining compliant with his medication regimes, demonstrating excellent insight and integrating into surrounding networks, including having further developed a close relationship with a woman that had experienced mental impairment difficulties in her own life. This Court was informed on appeal that in August 2011, after the hearing conducted by Whelan J, the woman had passed away. As is hereafter noted, the expert evidence provided to this Court was to the effect that the appellant had managed well following the loss of his partner.

14 At the same time as the hearing of the review of the non-custodial supervision order made by Kyrou J the appellant applied for revocation of the non-custodial supervision order under s 31 of the Act. The application came before Whelan J on 27 August 2010. The Secretary to the Department of Health (the Department) the Attorney-General for the State of Victoria and the Director of Public Prosecutions (the Director) appeared as parties to the proceeding pursuant to s 37 and other sections of the Act. As appears to be usual practice in proceedings of this nature, after having discharged his obligations to notify relevant parties of the matter, the Director sought to be excused and took no active part in the hearing. The Secretary was represented but did not contest the application. The Attorney-General also did not actively oppose the case at first instance, although he was represented by counsel and did cross-examine some witnesses.

15 The evidence led at the application is set out in detail in the reasons for judgment of his Honour. In addition to the tendered reports of the appellant's supervising psychiatrist, treating psychiatrist and registered psychiatric nurse, oral evidence was given by authors of the reports. Each of them gave unequivocally positive, if not glowing recommendations of the appellant's insight into his impairment and the steps taken to monitor and control it. His supervising psychiatrist was fully supportive of the application for revocation. Her report indicated that the appellant posed 'a very low risk of endangerment to himself or others.' Her confidence that there was a low risk of non-compliance can also be inferred from her evidence that the non-custodial supervision order did not impact on the appellant's compliance or his motivation to stay in treatment. She added that official recognition of his progress by the revocation of his supervision order may also provide a therapeutic benefit to the appellant.

16 The appellant's treating psychiatrist testified that there were no concerns relating to risks of non-compliance. Whilst she had only been recently appointed to the post, on the basis of limited consultation and her review of his file, she testified that the appellant only posed a low risk of seriously endangering himself or other members of the community. In response to inquiries from his Honour, she supported the appellant's application for revocation. The registered psychiatric nurse reported that the appellant was very well organised and clear on all aspects of his treatment and welfare. She agreed with the evidence given by the supervising and treating psychiatrists that there was no evidence for any expectation of non-compliance.

17 In light of this evidence, his Honour concluded that whilst the appellant was medicated with clozapine he posed little to no risk to himself or others. However during the course of the appellant's treating psychiatrist's evidence his Honour observed:

I don't think there's any doubt that whilst he's on clozapine he's no problem at all and he will be in full remission and everything will be fine and that he won't represent a risk. Th[at] risk is not a risk - the risk is that he will become noncompliant.

18 His Honour concluded that the appellant's supervision order should not be revoked. Three considerations appeared to weigh heavily in his Honour's assessment. First, that the gravity of the risk the appellant posed to the community in the event of non-compliance was significant. His Honour was supported in this finding by the appellant's history of offending in 1999 when he was charged with stalking and involved in other offences prior to having been prescribed clozapine.[9] Second, while the appellant had been 'in the system' for over twenty years by the time of the application, his Honour considered that the relevant time-frame for assessing his progress and history of compliance only began from 2000, when he started using clozapine. Third, revocation of the appellant's supervision order would not, to any significant degree, have any practical effect on the extent of the restrictions on his freedom and autonomy. On those grounds, and others, his Honour concluded that a longer period of supervision was the better course.

Positions taken by the Secretary and Attorney-General at first instance

19 Before turning to the grounds of appeal, it is necessary to examine the positions taken by the Secretary and the Attorney-General at first instance and on appeal. The following comments are also made in response to remarks by senior counsel for the Attorney-General, who indicated that the Attorney-General was receptive to any guidance the Court could provide regarding his responsibilities and the responsibilities of his Department in conducting proceedings governed by the Act within this jurisdiction.

20 During the hearing of the application, Whelan J, on more than one occasion, requested the Attorney-General and the Secretary to adopt a clear position either supporting or resisting the appellant's application. Despite those requests they did not support or oppose the application. On appeal however, the Secretary supported the appellant, contending that the judge had fallen into error in not revoking the supervision order. The Attorney-General actively opposed the appeal contending that no error had been shown in his Honour's decision to refuse to revoke the order.

21 It is clear from the structure of the Act,[10] the Parliamentary debates regarding the Bill to the Act[11] and the practices developed in this jurisdiction, that the nature of an application for revocation of a supervision order is imbued with a substantial inquisitorial dimension.[12] These proceedings appear usually to have been conducted as though they are of a hybrid nature, combining inquisitorial and some adversarial elements. A decision made by a judge not to release a mentally impaired person unconditionally from supervision is one in which the court is not bound by defined rules or practices but may inform itself in any manner it thinks fit.[13] The judge is required by the statute to balance the interest of the liberty of the detainee with protection of the community and in doing so assess risk factors which, in turn, depend upon value judgments.[14] The Secretary and the Attorney-General both made submissions that they appeared at the hearing of the application in a position analogous to an amicus curiae to assist the court in this task.

The role of the Secretary of the Department

22 The Secretary offered two reasons for adopting a non committal position at the hearing. First, a neutral position allowed the Secretary to liaise with parties and facilitate the production of evidence before the Court in an administratively efficient manner without affecting forensic options available to other parties contesting the application. This is not a persuasive consideration.

23 The Secretary has the 'custody, care, control and supervision' of the person who is subject to supervision. The evidence to be called in such proceedings will usually be largely of an expert and medical nature and will come from witnesses who are involved in the treatment and management of the person. It is to be expected that, in the great majority of cases, the Department would adopt the views of the treating team. If those views were opposed to the case advanced by the client (patient), the intervention of the Department would add little forensic weight to them, and therefore little to the case against the client. If, on the other hand, the Secretary's view differed from the treating team, so much greater would be the need for the Secretary to articulate the Department's position.

24 Each of the witnesses provides a report or statement before the hearing. While it may be more convenient for the Secretary to facilitate the calling of that evidence, there are no formal restrictions on any party's ability to tender such evidence. Each party to the proceeding is equally entitled to lead such relevant evidence of its choosing subject to the applicable laws and rules of Court. Whichever party ultimately calls particular witness, it is unlikely, particularly in a proceeding which has an inquisitorial dimension, that they would be denied the right to cross examine a witness if the judge considered it served the interests of justice.[15]

25 It was suggested that when the Secretary facilitates the placing of the evidence before the court, the Secretary's position is to be equated with someone who occupies the position of 'counsel assisting' or 'amicus curiae'. We need not stay to consider whether such a characterisation of the role is apposite, for it does not follow that the Secretary should not take up a position on the primary issues. The responsibilities of the Secretary for the ongoing management and supervision of the person the subject of an order, place the Secretary in a particularly advantageous position in resolving the questions before the court. The Secretary, as a party to quasi-inquisitorial proceedings, should play a role in presenting and exploring the facts and in making submissions. The contention cannot be sustained that the making of submissions by the Secretary addressing the substantive issues could in any way impede the discharge by the Secretary of a facilitative function in calling witnesses in circumstances where the Secretary is required to perform that function.

26 We turn to the second reason advanced by the Secretary to justify the adoption of a neutral position in the proceeding. It was said that to do so was more likely to preserve the therapeutic relationship between the person subject to the supervision order and a treating team that is either engaged by the Secretary or formally represented in court by the Secretary. It was submitted that especially in instances where the treating team's reports were adverse to the person subject to a supervision order, the person's confidence in the treating team may be adversely affected if the Secretary took a partisan role in proceedings.

27 The submission proceeds upon the assumption that the person the subject of the order will distinguish between the treating team called by the Secretary and who are obviously opposed to his application and the Secretary of the Department who makes no submission. If the person subject to an order is sufficiently astute to recognise that the treating team is opposed to his or her application, it is unlikely that the person would remain positively engaged with the Secretary and the Department, simply because the Secretary has added nothing to the adverse recommendation of the treating team. In other words, the purported neutrality of the Secretary is unlikely to redress any damage caused to the therapeutic relationship between an individual and his or her treating team where the latter have taken a position adverse to the individual.

28 It was said that neutrality may make the person more comfortable about later requesting new treating team members. It was recognised however that it may in any event be impractical or counter productive for the Secretary to accede to any such request made because the existing team members had considered it undesirable to change the present level of treatment or supervision. That said, one must allow that there may occasionally be particular circumstances in which purported neutrality on the part of the Secretary may be beneficial to the ongoing relationship. Where the Secretary, after careful consultation with the treating and management team, concludes that due to therapeutic considerations the Department should be seen to remain impartial, the Secretary should convey these considerations to the Court; as it should in any case where it does not take a position for any other reason. The Court may then order that the proceedings be conducted in such a way as to minimise the risk of damage to the therapeutic relationship.[16]

29 Neither therapeutic considerations nor facilitating the calling of the expert evidence could explain the position taken by the Secretary at first instance in the present case. As counsel for the Secretary conceded after taking instructions during the appeal, no justification could be advanced for failing to take a position before Whelan J. The evidence from the appellant's treating team was overwhelmingly in support of the application to revoke the supervision order. As afore-mentioned, the senior member of the appellant's treating team observed that revocation of the non-custodial supervision order would provide a therapeutic benefit. It follows that failing to actively support the appellant's case at first instance was not only inapposite for the purposes of this case, but arguably contrary to the therapeutic benefit that the Secretary's neutral posture was intended to advance.

30 A court at first instance, or on appeal, is likely to be assisted in its evaluation of whether the present degree of supervision and treatment should be maintained if the Secretary adopts a positive position and makes informative submissions on these issues. Save in those cases where there is a real danger that submissions may damage the therapeutic relationship, the Secretary should take up a clear position for or against variation of the existing regime. In this case counsel for the Secretary rightly acknowledged that the Secretary of the Department should have taken a position supporting the application. That the Secretary has now actively sought to support the appellant's application on appeal reinforces the point.

31 Turning to the course taken by the Attorney-General before Whelan J, counsel for the Attorney-General refused to respond to the judge's requests that he would be assisted if the Attorney-General stated his position on the application. Beyond cross-examination of some witnesses, his counsel remained silent as to whether there should be a variation of the existing order. On appeal the bench sought an explanation from senior counsel for the Attorney-General as to why there had been a refusal to adopt any position below. Two reasons were advanced. First, it was contended that the Attorney-General sought to discharge an inquisitorial function by assisting in the exploration of the evidence and the identification of pertinent facts, by cross-examining witnesses to elucidate issues germane to the application. This has been the practice of successive Attorney-Generals and their Department in multiple cases of this nature over a very considerable period of time.

32 As in the case of the Secretary, the Attorney-General, as a party to quasi-inquisitorial proceedings, may play an important role in presenting and exploring the facts. Parallels were drawn between the role performed by the Attorney-General and that of counsel assisting[17] or amicus curiae in exploring the evidence. Unlike the Secretary, the Attorney-General has no interest in the management team nor does the risk of affecting any therapeutic relationship arise. The Attorney-General thus has the opportunity to play a constructive role in testing the opinions of the expert witnesses. It was not suggested nor could it be, that the discharge of a function analogous to counsel assisting should preclude or inhibit the Attorney-General from making submissions at the conclusion of the hearing as to how the issues should be resolved. The inquisitorial role which the Attorney-General seeks to discharge is not in any way incompatible with making submissions as to whether the existing regime of supervision and treatment should be varied. That is reflected in the fact, acknowledged by his counsel, that it was not uncommon for the Attorney-General to oppose the revocation of a supervision order.[18] It illustrates the fact that the functions of adducing evidence and making submissions are not mutually exclusive. They both have an important role to play.

33 The Attorney-General secondly submitted that failing to actively contest the application was due to his interest in impartiality and the appearance of neutrality. It was said that one of the objectives of the Act was to transfer responsibility for custody issues of mentally impaired persons from the Executive to the courts and provide for the courts, rather than the Executive, to be responsible for making highly sensitive release decisions.[19] It followed, in the Attorney-General's submissions, that the purposes of the Act would be better advanced if he did not actively contest applications of this nature in light of the separation of roles contemplated by the legislation.

34 Firstly, such a view of the purpose of the amendments is irreconcilable with the course often adopted by the Attorney-General in such proceedings. It was conceded by senior counsel for the Attorney-General that it is not uncommon for the Attorney-General to actively contest applications of this nature brought by persons subject to supervision orders where he is satisfied that the evidence justified opposing revocation.[20] When he does so, the Attorney-General departs from a position of neutrality. A preparedness to oppose applications where the evidence justifies it, gives rise to the question why the Attorney-General withholds any expression of support for an applicant where the evidence is sufficient to warrant a variation to the existing regime. In this respect, we echo the concerns of Whelan J regarding the nature of the considerations informing the Attorney-General's refusal to advance a clear position. In his discussions with counsel for the Attorney-General, his Honour remarked:

HIS HONOUR: My impression and it might be wrong is that the applications are actually supported but that nobody is brave enough to say so, so I have to be brave enough to say so even though you're not.

COUNSEL: The discretion lies with you, yes.

...

HIS HONOUR: I know that. People appear to assist, not to ensure they are immune from criticism in the future and that's my concern about it. I get a clear impression the Attorney-General actually supports the application but is not prepared to say so. He is not prepared to take a risk that he says I should take.

35 As a general rule, there should be compelling articulated reasons proffered as to why the Attorney-General does not take up a clear position either supporting or opposing an application for revocation of a supervision order. This is reflected in the current form of the Act and the rights of appeal that were extended to include the Director and the Attorney-General since the amendments introduced by the Forensic Health Legislation (Amendment) Act 2002.[21] Prior to those amendments, the Attorney-General was not entitled to appeal as of right. In the second reading speech to the amending legislation, the responsible minister said:[22]

Experience has shown that the involvement of the Attorney-General's legal representatives speaking on behalf of the community is invaluable. The Attorney-General is the first law officer of the state and has played no part in the initial prosecution. The Attorney-General can therefore come to the court to protect the community's interests.

So that the Attorney-General can fulfil this role more effectively, the bill amends the act to guarantee the Attorney-General's right to appear. The bill also extends power to appeal a court decision to the Attorney-General. This will ensure that the Attorney-General has all necessary powers to act in and protect the community's interests.

Notice and rights of appeal

The Director of Public Prosecutions, the Attorney-General, the supervisor appointed under the act and the Department of Human Services all have a role to play at Court hearings.

36 To maintain a neutral position where attenuation of an existing order is justifiable, is inconsistent with the underlying purpose of the amendments to the Act which 'guarantee'[23] the Attorney-General's right to appear. It is to take a too narrow view of what in this context are the community interests which he should be protecting. There is both a public interest in ensuring the safety of the community, and in protecting the right to liberty of one of its members. Persons with a mental impairment are as much a part of this society as are those without.[24] Both of these public interest considerations are at the forefront of an application to vary existing supervision orders. They are central to the principle enshrined in s 39 of the Act. The position which the Attorney-General, and the Secretary adopt in such proceedings should be influenced by each of these critical considerations.

37 Sometimes the evidence as to whether supervision or treatment should be altered will be inadequate, complex or contradictory. In those circumstances the Attorney-General may be unable to form a view as to the merit of the application. But only where the evidence precludes the formation of any view should the Attorney-General abstain from making a submission. This was not a case which permitted that course. His counsel should have responded to the trial judge's requests and made a submission as to the merit of releasing the appellant from supervision. If his position- as disclosed on appeal- was that the evidence was sufficient to justify either revocation or confirmation of the non-custodial supervision order, then at the very least, his counsel should have made a submission to that effect. However the Attorney-General's failure to take up any position that might be viewed as providing some support for the grant of the application, was remarked upon by his Honour. It gave rise to the perception that the Attorney General wished to avoid any risk of public criticism were the supervision order to be revoked and the appellant to offend in some way.

38 The Secretary and Attorney-General should adopt a clear and unequivocal position where the evidence permits. If for any justifiable reason they are unable to take up an unequivocal position, they must inform the Court in a constructive way as to why that is so.

39 Senior counsel for the Attorney-General submitted that although the Attorney-General did not contest the application at first instance and then sought to actively oppose the appeal, this did not constitute a change in position, but involved a recognition that the decision of Whelan J was within a sound exercise of a discretion that could also have been properly exercised to arrive at the opposite conclusion. Notwithstanding the technical merits, if any, of this argument, for practical purposes, the position taken on appeal by the Attorney-General is a reversal of his position below. As we have said, if the Attorney-General's position at first instance was that the state of the evidence was sufficient to support revocation of the order, albeit refusal to follow that course was also open, his counsel should have made a submission to that effect. Such a stance would have provided his Honour with some guidance. Moreover, it is of no assistance to the judge below that the Attorney-General now defends his Honour's conclusion when he took no active position at the hearing despite the repeated requests for assistance. Further, it is likely a source of some consternation to the appellant and perhaps other parties to these proceedings, that the Attorney-General opposes the appeal on the basis that if the discretion below had instead been exercised in favour of the appellant and the supervision order revoked, the Attorney-General would also have opposed an appeal from that decision.

40 In accordance with general principle and in the absence of fresh evidence, neither the Attorney-General or the Secretary would have a right to advance a changed position on appeal. However no party submitted that they should not be heard in support of their changed position on the appeal. Therefore we do not stay to consider further the question whether they should be allowed to do so.

Ground 1 - The decision to refuse to revoke was not reasonably open Discretion governed by principles in House v The King

41 The appellant's first ground of appeal is that it was not open to the judge below to refuse to revoke the supervision order. The contention that the finding below was not open to his Honour presupposes that this was an appeal governed by principles in House v The King[25] or considerations approximating those principles. Although the appellant sought to resile from an unqualified subscription to those principles, he did not altogether eschew the discretionary nature of the decision made at first instance. The Secretary adopted a similar position. The Attorney-General submitted that this was an appeal regulated by the ordinary principles in House v King.

42 Subject to the terms of any applicable legislation, an appeal from a discretionary decision is usually governed by the principles in House v King. In RDM v DPP & Ors,[26] Winneke P expressed his uneasiness with the legislative 'fiction' which then existed which equated an appeal against a judge's confirmation of a custodial supervision order with an appeal against sentence. Since RDM that fiction has been removed,[27] presumably because it was recognised that very different tasks confront a judge in confirming or revoking a custodial supervision order and the exercise of a judge's sentencing discretion.[28]

43 In deciding whether to revoke or confirm a supervision order, the scope of considerations for a judge are much more limited than those relevant to the sentencing task. While s 40(1)(f) of the Act permits the Court to have regard to any factors it considers relevant, there is no body of case law and practice or statutory prescriptions that in any way resembles the law providing guidance in sentencing.

44 In RDM, Winneke P nonetheless described the task of confirming or revoking existing supervision orders as 'a discretionary exercise', though not one which lends itself as readily to review as the exercise of a sentencing discretion.[29] He then said:

This court is, none the less, required to regard the judge's confirmation of the supervision order as a 'sentence' and to quash his order if we think a different order should have been made. In my view, the court should only do so if it is satisfied that his Honour has applied some fundamentally erroneous principle which can be seen to have vitiated his discretion and to have led to a manifestly unjust result.[30]

45 On the basis of these remarks, the appellant and the Secretary preferred to characterise any appellable error below as a 'fundamental error,' rather than an error in one of the conventional forms set out in House v The King. There is nothing in the observations of Winneke P that suggest that the principles in House v The King are not the guiding principles of an appeal from a decision to refuse revocation of a non-custodial supervision order. The President's concluding remarks in that case effectively disposed of the appeal on the basis that the appellant did not establish appellable error under the guise of any ground of specific error, or the category of residual error, set out in House v The King.[31]

Evaluation of mental condition and risk assessment

46 Subject to the terms of the Act, the principles in House v The King have considerable resonance in this appeal. The decision at first instance was discretionary because it depended on the application of the broad principle set out in s 39 of the Act having regard to the factors mentioned in s 40.[32] Those sections are set out in the following terms:

39 Principle to be applied

In deciding whether to make, vary or revoke a supervision order, to remand a person in custody, to grant a person extended leave or to revoke a grant of extended leave under this Act, the court must apply the principle that restrictions on a person's freedom and personal autonomy should be kept to the minimum consistent with the safety of the community.

40 Matters to which the court is to have regard

(1) In deciding whether or not to make, vary or revoke an order under Part 3, 4 or 5 in relation to a person, to grant extended leave to a person or to revoke a grant of extended leave, the court must have regard to -

(a) the nature of the person's mental impairment or other condition or disability; and

(b) the relationship between the impairment, condition or disability and the offending conduct; and

(c) whether the person is, or would if released be, likely to endanger themselves, another person, or other people generally because of his or her mental impairment; and

(d) the need to protect people from such danger; and

(e) whether there are adequate resources available for the treatment and support of the person in the community; and

(f) any other matters the court thinks relevant.

47 Section 39 requires a value judgment informed by the competing considerations stated in the provision. Section 40(1) requires an evaluation of the appellant's mental condition and progress and an assessment of risk against discrete but interrelated criteria. These assessments call for value judgments in respect of which there is room for reasonable differences of opinion. No particular opinion being uniquely right, the making of the order involves the exercise of a judicial discretion.[33] The discretionary character of the decision is not displaced by the mandatory requirements that the judge 'must apply' the principle in s 39 or 'have regard to' the factors in s 40.[34]

48 We would affirm the view that this is an appeal from a discretionary, or at the least, quasi-discretionary, judgment.[35] Subject to the terms of the Act, and any other applicable legislation,[36] an appeal against a decision refusing to revoke a non-custodial supervision order should be informed by the principles in House v The King, even though they may operate differently in this context compared to a sentencing appeal.

49 The appellant's submissions under cover of each ground of appeal were also misdirected, to the extent that he contended the judge below gave greater weight to s 40(1)(c) and (d) than the other factors and or that his Honour gave them excessive weight. The contention that this factor was given 'greater' or 'excessive' weight raises discrete complaints. Whether or not the judge below accorded the considerations in s 40(1)(c) and or (d) 'greater' weight in reaching a conclusion compared to the other factors in s 40(1) does not necessarily bespeak appellable error. It is not necessary that each of the factors to which a court must have regard must be given equal weight in the exercise of the discretion.[37] Where a court is required to have regard to specified factors, the weight to be attached to them will depend on the words of the applicable legislation, the nature of the relevant discretion and the facts of the particular case. Here the informing principle in s 39 requires an assessment of the relationship between the two public interest considerations one of which is also a factor set out in s 40(1)(c) and (d). Consequently that consideration may be given greater prominence in the assessment.[38] But to elevate any of the criterion to the status of a test or decisive consideration, or to marginalise or exclude advertence to other factors[39] would constitute a misapplication of the relevant criteria.[40]

50 The appellant asserted that his Honour erred in both these respects. That contention is unsustainable as is the submission that he gave s 40(1)(c) and (d) excessive weight. There is no indication in his Honour's reasons that he did anything more than give prominence to these factors without discounting the relevance of the other criteria in s 40(1). The proposition that these factors were given 'excessive' weight is untestable because his Honour did not assign any quantitive significance to them.[41] Grounds 2 and 3 allege discrete errors as to his Honour's evaluation of the risk of danger and are separately considered.

51 The appellant's first ground of appeal also invited this Court to find 'fundamental error,' in the conclusion reached by Whelan J on the basis that it fell within the category of residual error set out in House v The King. The appellant contended that the decision below could not be supported in the face of the unanimity and strength of the expert evidence. However the discretion need not always be exercised in conformity with the weight of the expert evidence. Given the nature of this discretionary task, involving as it does value judgments in assessing risk where reasonable minds may differ, a party who contends that such a discretion was exercised in a manner not reasonably open has a difficult burden to discharge.

52 As we have concluded that the appeal should be allowed and the non-custodial supervision order revoked on other grounds which establish specific error, it is unnecessary that we express a concluded view as to whether the residual error under House v The King has been made out.

Grounds 2 & 3 - interaction between s 40(1)(c) and s 39 of Act

53 The second and third grounds of appeal may be considered together. The nub of the grounds relates to the interpretation of s 40(1)(c) and its interaction with the principle in s 39. The appellant contends that his Honour failed in two critical respects to correctly evaluate the risk of danger. First, that s 40(1)(c) primarily pertains to an evaluation of the likelihood of danger and not the degree of danger. Second, that there is a principle of parsimony set out in s 39 that required the appellant's liberty to be optimised, unless it was necessary not to do so for the purposes of safety to others.

Meaning of 'endanger' under s 40(1)(c) of Act

54 In assessing the extent of the danger posed by the appellant, Whelan J concluded:

This is not a case where both the risk of non-compliance and the danger in the event of non-compliance are independently low. Here, if there is non-compliance, the events of both 1999 and of the index offence itself demonstrate that the danger is significant. Non-compliance is a risk which can never be entirely eliminated, as [the supervising psychiatrist] frankly conceded. In the circumstances here, a history of 10 years of compliance with successful treatments is not long enough in my view.

I accept that revocation will have therapeutic benefits for the applicant, but in the circumstances I cannot put those benefits ahead of my concern about the danger of the applicant should, against all current expectations, [he] become non-compliant.[42]

55 His Honour acknowledged that the risk of non-compliance, being the relevant event causing danger to others, was low.[43] The low risk of the appellant failing to comply with his treatment regime was evident, not only from the aforementioned testimony and reports given by the appellant's treating team, his history of compliance for a period of about ten years and his accepted insight into his condition; but also from the obvious incentives to the appellant in continuing treatment. There are serious problems with restarting a patient on clozapine, even following a minor period of withdrawal as short as two days. It was established that the appellant was not only concerned with controlling his mental impairment but also improving his general wellbeing. Clozapine is a drug that needs to be carefully monitored due to the risk of its causing a potentially life threatening condition that is usually monitored by way of monthly blood tests. It is plainly in the appellant's interests to remain compliant with clozapine treatment and engaged with a treating team for the purposes of controlling his mental impairment and monitoring the risks to his general health associated with that treatment.

56 Evidence from the treating psychiatrist was that the risk of non-compliance would be adequately controlled by the appellant's intention to remain engaged with his treating team, insight into his early warning signs and the potential to mobilise speedy response measures. These included measures ranging from follow-ups to physical attendance by specially trained critical assessment teams contacting the appellant and overseeing readmission to custody if necessary: the entire regime provided for by the Mental Health Act 1986 is a relevant consideration in this regard.[44] Should the appellant relocate, it was well canvassed at trial that a transition of treating responsibility to local specialists would be co-ordinated. Any disruptions to the appellant's regular contact with his family members, who are well aware of his mental impairment, would also serve as a means of identifying any non-compliance, risk of relapse or irregularities in general. For instance, in February 1993 the appellant's leave from custodial supervision was cancelled and he was readmitted because of concerns expressed by his family about a possible deterioration in his mental state.[45] It is also possibly relevant[46] that the evidence previously acted on by judges in proceedings relating to the appellant disclosed that any onset of a relapse in his condition is one which is noticeable and takes a period of some days to come to fruition.[47] When viewed in light of the low risk of non-compliance, the likelihood of any danger materialising is sufficiently low: the danger, in the sense of the gravity of harm, is serious, but there was only, as his Honour accepted, a mere possibility that the risk of such harm would materialise.

57 Senior counsel for the appellant asserted that his Honour misconceived s 40(1)(c) to require an assessment of the 'serious endangerment' to others posed by the appellant, when it only requires an assessment of whether the appellant would, if released, be likely to endanger himself, another person or others generally. Although his Honour's view of the gravity of the danger posed by the appellant is unimpeachable, the appellant rightly contends that it was accorded unjustifiable prominence and assumed that the low risk of non-compliance would materialise. His Honour, in our respectful opinion, wrongly focussed upon the gravity of the potential harm to others involved with such a risk in assessing the likely danger to others as 'significant'. In assessing the likely danger to the appellant, another or others in general under s 40(1)(c), the low likelihood of such a risk materialising should have been the critical consideration, rather than the gravity of the harm in the event that the risk eventuated.

58 Endangerment is about the risk of harm. The gravity of the harm may be relevant to assessing the nature of the risk, but the probability of any risk, be it high or low, is the critical concept of endangerment. In the absence of any Parliamentary guidance on the meaning of the word, this much is clear from the term's ordinary and literal meaning. In the Oxford English Dictionary, the word 'endanger' means 'to expose to danger or cause danger to.'[48] The current main sense of the word 'danger' is defined as 'liability or exposure to harm or injury; the condition of being exposed to the chance of evil; risk, peril.'[49] The ordinary meaning of endangerment entails the concept of chance or risk. The terms of s 40(1)(c) requires a Court to assess whether a person is 'likely to endanger themselves or others.' This serves to emphasise that the focus is upon the extent of the chance, risk or peril of some harm materialising. If the harm or injury which is likely to result is substantial but the 'chance', 'risk' or 'peril' of it eventuating is minimal, then a person subject to a supervision order is not necessarily 'likely to endanger' himself or others under s 40(1)(c).

59 The probability of a risk materialising has also been the critical consideration in the assessment of 'danger' in different statutory contexts. For instance, in the reckless endangerment offences in ss 22 and 23 of the Crimes Act 1958, the gravity of the risk is specified, either as a serious injury or death.[50] While these provisions operate in an entirely different statutory context, the same, aforementioned, ordinary meaning of 'danger' has been invoked to construe the term,[51] and in that material respect, the interpretation of ss 22 and 23 of the Crimes Act 1958 can shed some light on the construction of the meaning of the word 'endanger'.[52] The dangerousness of an act or course of conduct sanctioned by ss 22 and 23 is assessed by recourse to whether the act or conduct carried with it an appreciable risk of the prohibited harm:[53] It is an assessment of the likelihood of the risk materialising and whether or not that risk is more than merely possible,[54] that is the critical consideration, not the gravity of the harm that may eventuate.

60 In contradistinction, the requirement for demonstrating 'serious endangerment' is evident in numerous other provisions of the Act relating to variations, confirmations or revocations of other custodial and non-custodial arrangements.[55] Some of these provisions require advertence to the 'serious endangerment' the applicant poses to the community in addition to the factors set out in s 40.[56] However, unlike these provisions, s 33, the section that grants the power to revoke a non-custodial supervision order, does not specify any factors other than those in ss 39 and 40 for the purposes of exercising the discretion. Given the express reference to the likelihood of endangering the applicant or others, the consideration of 'serious endangerment' to the applicant or the community is not a necessary consideration for the purposes of revoking a non-custodial supervision order under s 33.[57] This factor, among others, may be relevant to a decision under s 33, by virtue of s 40(1)(f), but it is not incumbent on a Court to advert to factors not adumbrated in s 40(1)(a)-(e), including the gravity or seriousness of harm to oneself or others that may result from non-compliance. The necessary and relevant consideration for the purposes of ss 33 and 40(1)(c), is whether or not the person is, or would if released be, likely to endanger him or herself, another person, or other people generally, because of his or her mental impairment.

61 It is also evident from the authority his Honour relied on that he failed to distinguish between the notions of likelihood of danger and serious endangerment. In his reasons Whelan J stated that he had previously summarised the principles applicable to an application for revocation of a non-custodial supervision order in Re SKD.[58] He referred to a passage from his reasons in SKD in which he had said that every case in this area is different but that there are some principles which are nevertheless of importance. In the passage from SKD to which his Honour referred he discussed one of those principles. He said that it was

open for a judge to conclude that the chronic nature of schizophrenia, the possibility of future changes in treatment or personal circumstances and a lack of clear support controls in the Mental Health Act 1986 creates a risk of serious endangerment if all controls are removed, even where the psychiatric evidence is strongly supportive of the application for revocation.[59]

62 His Honour cited RDM as authority for that principle. By relying on the reference to RDM in SKD, his Honour referred to a case concerned in part with an application for revocation governed by provisions in the Act that did not include the factors set out in s 40. RDM was in part concerned with one of the provisions in the Act requiring consideration of 'serious endangerment' in clause 4(2) of Schedule 3 to the Act. The clause applies to 'existing detainees' subject to a Governor's pleasure order preceding the Act. An existing detainee on a custodial supervision order that has been, or was deemed to have been, on extended leave for a period of at least 12 months, could apply to the court for revocation of his or her custodial order.[60] Clause 4(2) required the Court to only revoke the existing detainee's custodial order 'if satisfied on the evidence available that the safety of the existing detainee or members of the public will not be seriously endangered as a result of the revocation of the order' (emphasis added). Aside from the principle in s 39,[61] no other specified factors are expressly relevant to an exercise of the discretion under clause 4(2) of Schedule 3 to the Act. In RDM, this clause and the issue of serious endangerment was central to the finding by Winneke P, with whom Charles and Chernov JJA agreed, that the applicant should not have his custodial supervision order revoked. In that context, the President rightly made little reference to the factors set out in s 40. However RDM evidently influenced the decision of the trial judge in the present case.

63 In the Matters of Major Reviews of Percy, Farrell and RJO,[62] Eames J dealt with the criterion of 'serious endangerment' under s 35(3)(a)(i) as well as the statutory criteria in ss 39 and 40. In the course of considering 'serious endangerment' Eames J took into account the gravity of the potential harm by drawing the distinction between a highly probable risk of minor moment and a mathematically improbable risk of serious import. The former may not satisfy a court that the person subject to a custodial order or the public would be seriously endangered by keeping custodial arrangements intact, whereas the latter may satisfy the court of such a criterion, provided that it could be established to the applicable standard of proof:

In my opinion, a conclusion that there is a less than 50% chance of violent behaviour if the reviewee is released might, in some cases, support a conclusion that the judge is satisfied that the safety of the public would be 'seriously endangered'. The risk of serious harm being done, were the anticipated danger to eventuate, may constitute a release to be a serious endangerment, on the balance of probabilities, even though the risk of the event happening was less than a 50% chance. Similarly, a very high risk of a relatively minor act occurring (for example, indecent exposure) might not constitute serious endangerment of the public.[63]

64 In many cases the inherent difference between the risk of 'serious endangerment' (which encompasses the gravity of the possible harm) and the likelihood of endangerment (to which the gravity of the possible harm is irrelevant) may be more apparent than real. This is not such a case. His Honour clearly indicated during the course of submissions that it was only in 'the unlikely event that [the appellant] became non-compliant, he would be a risk' (emphasis added). The only evidence suggesting that that was not the case was a very appropriate concession by the appellant's supervising psychiatrist that the risk of non-compliance could never be altogether discounted.[64]

65 In the absence of any indication to the contrary, the apparent Parliamentary intent behind the Act was that courts should decide on supervision orders and release arrangements because they would adopt a judicial approach to assessment of risk.[65] Especially in light of the principle in s 39 of the Act (as hereafter discussed), a decision to confirm supervision orders should not ordinarily rest on the edifice of expert concessions that there may be a technical and unlikely risk that the persons subject to the orders may endanger themselves or others.[66] It is unlikely that Parliament intended that judges invested with responsibility for evaluating risk and who had the benefit of expert opinion[67] to assist them, might then refuse to revoke supervision orders because of an absence of any psychiatrically underwritten guarantees that persons subject to such orders pose no possible danger.[68]

The appellant's freedom & parsimony within the operation of s 39 of Act

66 Another error upon which the appellant relies under cover of grounds 2 and 3 is that his Honour erred in applying the principle in s 39 of the Act. In his reasons for judgment Whelan J said:[69]

Continuation of the non-custodial order will not, it seems to me, impose on the applicant any significant practical restrictions. His treatment will remain the same. Reference was made to inhibitions on travel, but the evidence of both [the supervising psychiatrist] and [the treating psychiatrist] was that appropriate arrangements could be made so as to enable him to travel with his partner if he wishes. The nature of his treatment will restrict his capacity to travel, but the application was made on the basis that he will continue that treatment whether he is subject to an order or not. It is also envisaged that he will stay with North East Area Mental Health Service for the next two years, whether he remains on an order or not.

67 This line of reasoning was also evident in his Honour's remarks in response to submissions from the Secretary during the course of the hearing:

You don't have to persuade me that if he remains on the treatment he presently is getting that he represents an acceptable risk. My only concern is he's only been on a non-custodial order for two years. In the unlikely event that he became non-compliant, he would be a risk and what is the harm in making him go a bit longer. You might say, 'well he's been in the system 22 years', and that's a fair point, but a contrary view might be, 'we really have to start again at the point ten years ago where clearly he was a risk', so he's really only been risk free for ten years, not 22 years and what is the great harm, he'll have a major review in three years time. What exactly is the great harm in waiting until then? That's the only issue that I see.[70]

68 Senior counsel for the appellant complained that his Honour gave excessive weight to the lack of the practical impact of a legal restriction on the appellant's freedom and autonomy. He argued that his Honour failed to take account of the principle of parsimony and how it informed the operation of s 39. The principle of parsimony requires giving effect to 'the least sentence that is commensurate with the offence committed and with the purposes for which punishment has to be imposed.'[71] In one sense, this principle, like others relating to the law of sentencing, has limited application in the context of this appeal.[72] A supervision order is not a sentence or punishment but treatment. A person subject to such treatment, such as the appellant, is found 'not guilty' of any crime on account of his mental impairment, and on that basis, there is no justification or imposition of any punishment.[73] However, in another sense, the logical structure of the principle of parsimony has some resonance in this case. A supervision order, be it custodial or non-custodial, must only be imposed if necessary for balancing the safety of the community with the person's freedom and autonomy. So much is clear from various remarks during the Parliamentary debates of the Bill to the Act,[74] including more specific comments that 'no person should be deprived of his or her liberty unless it is absolutely necessary;'[75] and the following:

People with mental impairment should be detained in the least restrictive environment consistent with the safety of the community but always with an emphasis on receiving appropriate treatment, not punishment. If a person is not guilty he or she cannot be punished...

People should not be detained for periods longer than is necessary for them to be treated and have their behaviour modified to minimise the likelihood of re-offending.[76]

69 The types of decisions contemplated by s 39 presuppose some level of interference with a person's freedom or personal autonomy. Even the decision to revoke a non-custodial supervision order implies a pre-existing state of affairs in which a person is subject to such an order. In the context of the Act as a whole, the starting point for applying the principle in s 39 assumes that a person is already subject to a supervision order or that there is a real question as to whether a person should be subject to a supervision order or be remanded in custody. Any application of the principle in s 39 necessarily implies that interference with that person's freedom or personal autonomy is required to the extent consistent with the safety of the community. The principle of legality, and its particularly strong application in the context of a subject's liberty,[77] is impliedly displaced by the unmistakable language in s 39 - to the extent the displacement, if any, is necessary for the safety of the community.

70 In that connection, and for the reasons advanced above, it is not surprising that the judge below focused on the considerations in ss 40(1)(c) and 40(1)(d). It is clear from the words of ss 39 and 40 that the legislature intended the factors in the latter section to inform the application of the general principle in s 39. In the second reading speech to the original Act, the responsible minister said one of the aims of the legislation in relation to managing supervision orders was:

to set out the matters to which a court should have regard and, in so doing, to strike the appropriate balance between the protection of the community on the one hand and the clinical or therapeutic needs of the person on the other.[78]

71 We accept the appellant's submission that the finding that the nature and degree of the restrictions on the appellant's freedom and autonomy would have no 'significant practical effect' does not provide a basis for refusing to revoke the supervision order. There was evidence, accepted by his Honour, that discharge from the existing order would have a therapeutic impact. Such evidence was not however required. Supervision is a restriction on liberty and autonomy and it can be justified only where it is found to be necessary. The fact that the nature or degree of legal restrictions on a particular individual's liberty may be regarded as inane, facile or practically ineffectual, cannot justify preservation of the status quo where the restriction is not the minimum necessary to accord with the safety of the community. If it was not necessary to impose any restriction on the appellant to ensure the safety of the community, the statutory regime, informed by the principle of parsimony did not allow for the consideration of the degree of inconvenience to the appellant to justify non revocation of the order.

Grounds 4 & 5 - onus of proof and standard of proof

72 Grounds 4 and 5 raise questions relating to the onus of proof and the applicable legal standard of proof. Under ground 4 it is said that his Honour erroneously allocated an onus of proof to the appellant. The appellant submits that no party bears an onus in applications to revoke a non-custodial supervision order. The Secretary supported this submission and the Attorney-General conceded the point. These submissions should be accepted. No onus of proof should have been allocated to the appellant. That constitutes an independent ground for re-opening the discretion under s 33 of the Act.

73 In allied submissions under cover of ground 5, the appellant argued the judge below erred by holding that the Court should make its decision applying the civil standard of proof subject to the gloss in Briginshaw v Briginshaw,[79] more recently articulated in Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd.[80] The Secretary agreed that the judge had erred but placed a slightly different complexion on these issues; whereas the Attorney-General contended his Honour was entitled to approach the proceedings on the basis that the civil standard, subject to Briginshaw, applied.

74 We accept the Attorney-General's contention that the principle in Briginshaw is applicable. For the reasons that follow, whether evidentiary questions are governed by the common law or s 140 of the Evidence Act 2008, the process of reasoning by which reasonable satisfaction is attained must necessarily be affected by the gravity of the consequences flowing from findings in this jurisdiction.

Ground 4 - No onus of proof in proceedings under s 33 of Act

75 We agree with the parties' submissions that none of them bore any evidential or legal onus of proof and that the judge below fell into error by allocating an onus of proof to the appellant. While there are some judicial observations that support the contrary view, when regard is had to the terms of the governing Act and the interpretation of similar provisions in other legislation, we consider the better view to be that in proceedings of this type, no onus rests with any party.

76 In the context of a major review under s 35 of the Act, Eames J said in Percy:

As I stated earlier, it may be inappropriate to speak of there being any onus of proof placed on any person by s. 35. By s. 35(1) the court is set the task of conducting a major review without there being any application required by any party. The situation of a major review is therefore to be contrasted with the situation, by s. 31, where any of the persons named in the section, including the person subject to a custodial supervision order, may seek to have that status varied or revoked. Arguably, there is an onus placed on the applicant in that situation. But under s. 35, it is the judge who is set the task of inquiry; there is no general issue joined between any parties, although a right of appearance is given to the State or the Director of Public Prosecutions or to any other person with a substantial interest in the matter, and by s. 37(2) all such persons are declared to be 'parties' in the matter.[81]

It is first convenient to consider whether, in making the application, the applicant must satisfy me of any particular matter and if so to what requisite degree I must be so satisfied. Where an applicant applies for extended leave, s.57(2) requires that the Court be satisfied that the safety of the patient and members of the public will not be seriously endangered by the granting of such leave. Similarly, s.32(2) provides that the Court must not vary a supervision order to a non-custodial supervision order 'unless satisfied on the evidence available' that the safety of the person subject to the order and members of the public will not be seriously endangered. In the case of both of those ss, the applicant has been held to bear the onus of satisfying the Court, on the balance of probabilities, on the issues of personal and public safety, and in order that the onus be discharged, the Court must achieve a high degree of satisfaction in accordance with principles enunciated in Briginshaw v Briginshaw. On the other hand, ss.33, 39 and 40 of the Act do not specifically provide that the Court must actually be satisfied of that matter in order to make an order revoking a non-custodial supervision order. Nevertheless it is the applicant who seeks the order, and thus bears the onus of satisfying the Court that the application should be granted. Furthermore, ss.39 and 40(1)(c) and (d), not surprisingly, make it clear that a primary consideration for the Court is whether, by acceding to the application, the applicant or members of the community would be placed in danger. It is a moot point whether or not any onus of proof lies on the applicant similar to the burden specified in the cases which I have quoted. Nevertheless I would not be disposed to grant the present application unless I was satisfied by cogent evidence, and to a comfortable degree, that the applicant would not endanger himself or other members of the community should we revoke his non-custodial order.[82]

78 These decisions exhibit some reservation in imposing an onus of proof on the party initiating applications to alter the status quo regarding a supervision order. We would not treat either as authority for the proposition that there is an onus of proof on the appellant in proceedings of this nature. Other authority affirms the lack of an onus of proof on any party to proceedings within this jurisdiction.[83]

79 The manner in which these proceedings are to be conducted is provided for in s 38 of the Act.

Rules of evidence not to apply in certain hearings

(1) The court is not bound by rules or practice as to evidence but may inform itself in relation to any matter in such manner as it thinks fit in the hearing of:

...

(c) an application for variation or revocation of a supervision order

80 There is no onus of proof in hearings before the Administrative Appeals Tribunal where there is a provision substantially similar in form and substance to s 38.[84] For example, in Dr Butler v Fourth Medical Services Review Tribunal and Anor,[85] North J said:

The question of the applicability of notions of onus of proof in administrative decision-making was dealt with in McDonald v Director-General of Social Security [1984] FCA 57; (1984) 1 FCR 354. This case involved an appeal from a decision of the Administrative Appeals Tribunal confirming a decision of a ministerial delegate to cancel an invalid pension which had previously been awarded to the applicant. Although the statutory provisions were different from the provisions in the present case, the approach to the question of onus is noteworthy. Woodward J said, at 356-7:

'The first point to be made is that the onus (or burden) of proof is a common law concept, developed with some difficulty over many years, to provide answers to certain practical problems of litigation between parties in a court of law. One of the chief difficulties of the concept has been the necessity to distinguish between its so-called 'legal' and 'evidential' aspects. The concept is concerned with matters such as the order of presentation of evidence and the decision a court should give when it is left in a state of uncertainty by the evidence on a particular issue.

The use outside courts of law of the legal rules governing this part of the law of evidence should be approached with great caution. This is particularly true of an administrative tribunal which, by its statute 'is not bound by the rules of evidence but may inform itself on any matter in such manner as it thinks appropriate' (AAT Act s33(1)(c)).

Such a tribunal will still have to determine practical problems such as the sequence of receiving evidence and what to do if it is unable to reach a clear conclusion on an issue, but it is more likely to find the answer to such questions in the statutes under which it is operating, or in considerations of natural justice or common sense, than in the technical rules relating to onus of proof developed by the courts. However these may be of assistance in some cases where the legislation is silent.

Whether the principles adopted by such a tribunal, arising from these various considerations, are appropriately dealt with under the heading 'onus of proof', becomes a matter of choosing labels. It would probably be more convenient to avoid using that expression in cases such as the present.'[86]

81 After reviewing various authorities, North J went on to conclude:

Thus, the weight of authority is against describing the process before administrative tribunals, such as the Tribunal, in terms of the onus of proof. This concept applies to an adversarial contest in a court. The term is used to identify the obligations on the party responsible for proving a case. The concept does not apply readily where there is no adversarial contest.[87]

82 The inquisitorial and administrative dimensions of hearings before the Administrative Appeals Tribunal share similar characteristics with proceedings in which a person seeks to be released from a supervision order - that Winneke P in RDM characterised as inquisitorial or administrative.[88] Under the Act, proceedings relating to revocation of non-custodial supervision orders contain various non-adversarial elements - as previously discussed. In a historical sense, such proceedings were once managed administratively by the Executive arm of the State. In the absence of any indication to the contrary, it may be presumed, as a matter of statutory construction, that the Legislature intended s 38(1) of the Act to be given the same meaning as s 33(1)(c) of the Administrative Appeals Tribunal Act 1975 (Cth), since

82 it chose to enact s 38(1) in similar terms and following the extensive judicial consideration of the Commonwealth legislation.[89]

83 The lack of onus should be considered in light of what has been called 'a common-sense approach to evidence.'[90] It was the approach articulated by Woodward J in McDonald v Director-General of Social Security.[91] In a further passage from McDonald to those cited by North J in Dr Butler, Woodward J went on to say:

It is true that facts may be peculiarly within the knowledge of a party to an issue, and a failure by that party to produce evidence as to those facts lead to an unfavourable inference being drawn - but it is not helpful to categorise this common-sense approach to evidence as an example of an evidential onus of proof. The same may be said of a case where a good deal of evidence pointing in one direction is before the Tribunal, and any intelligent observer could see that unless contrary material comes to light that is the way the decision is likely to go. Putting such cases to one side there can be no evidential onus of proof in proceedings before the AAT unless the relevant legislation provides for it...[92]

84 Consistent with the reasoning in other administrative and inquisitorial jurisdictions,[93] a similar approach should be adopted to proceedings such as this. In accordance with the submissions of all parties, the better view is that there is no legal or evidential onus of proof on any party to these proceedings. That is not to say that a court hearing a matter relating to a supervision order, an application for leave, or other matter under Part 5 of the Act, may not impose on a party to any such proceedings an onus of proof. Under s 38(1) of the Act, it is within the court's discretion[94] to 'inform itself in relation to any matter in such manner as it thinks fit' in relation to applicable evidential considerations. However, in the absence of such a direction from the court, based on principled reasoning, the preferred view is that as a general rule, applications for revocation of a non-custodial supervision order should not proceed on the grounds that the originator of the application bears a legal or evidential onus of proof.

Ground 5 - Applicable standard of proof - Briginshaw and s 140 of the Evidence Act 2008 (Vic)

85 The appellant argued that the civil standard of proof could not apply to civil proceedings such as these, because no party bore an onus of proof. He submitted that was so whether the evidentiary rules were governed by the common law or s 140 of the Evidence Act 2008 ('Evidence Act'). In particular it was contended that the Briginshaw principle can have no application in the absence of a party bearing an onus of proof.

86 Secondly the appellant submitted that even if a standard of proof applied, there is a line of authority that has rejected the application of the principle of Briginshaw to questions which arise in this jurisdiction. It is said that the principle cannot be applied to the assessment of future risk.

87 Thirdly, the appellant contended that even if a standard of proof applied, it would be the statutory standard set out in s 140 of the Evidence Act and that standard could not accommodate the principle in Briginshaw. That principle, so it was said, required a fact-finder to reach a state of satisfaction that included actual belief in the existence of the facts to be proven, whereas s 140 of the Evidence Act requires no such state of mind.

Whether a standard of proof informed by the principle in Briginshaw can apply where there is no onus of proof?

88 We turn to the appellant's first submission that as no party had made any allegations against the appellant and bore no onus, the adherence to a civil standard of proof, informed by the principle in Briginshaw, was problematic. That was so, it was said, because the application of the principle presupposes an onus rests with one party in making serious allegations against another. We reject that submission. Although no party bore an onus, it does not follow that in such proceedings the court is entitled to reach its decision without having satisfied itself to a standard of proof as informed by the principle in Briginshaw.

89 There is a considerable body of authority that supports the application of a civil standard of proof to matters where there is no onus of proof, especially within the Administrative Appeals Tribunal and other bodies that have a legislative provision analogous to s 38 of the Act.[95] In our opinion although no party carries a burden of proof, the civil standard of proof, informed by the principle in Briginshaw applies in this jurisdiction.

90 A civil standard of proof which embraces the principle in Briginshaw may be applied to issues within the contemplation of one party, more so than another, or specific allegations made by one party against another, even though these issues are ventilated within the context of a larger case in which there is no overarching onus of proof.[96] Dixon J in Briginshaw related the appropriate standard of persuasion to individual allegations of material fact, and findings of facts to be proved.[97] Decisions from jurisdictions in which there is no onus of proof reflect the aforementioned common-sense approach to particular issues where fact-finders endeavoured to reach a state of satisfaction on the civil standard of proof but were sensitive to considerations such as the nature and consequences of the facts to be proved, the seriousness of any allegations made, and the gravity of the consequences flowing from a particular finding.[98]

91 Where questions of custodial or non-custodial supervision arise under the Act the principle is likely to be enlivened, regardless of the specific contentions, if any, that are made by parties to the proceeding. Irrespective of whether any party makes a specific allegation against the offender, if an alteration to the existing level of supervision is a possible outcome of the proceeding, there will always be an issue as to the seriousness of the offender's mental impairment or the endangerment to the community. Such issues are to be likened to allegations against the offender. In a more visceral sense, the nature of these proceedings and the gravity of the consequences flowing from findings of fact within them, also strike at the core of the appellant's liberty as a subject of the State. The significance of these matters should, quite rightly, bear upon the state of satisfaction of the judge determining such questions of fact if the principle in Briginshaw can be applied to such proceedings. That is to say, although no party to the proceedings bore any legal or evidential onus of proof, informed by the common-sense approach to evidence, the strength of the evidence necessary to satisfy the standard of proof would be influenced by the gravity of the consequences of particular findings.[99]

Whether Briginshaw can apply to questions of future risk?

92 The appellant's second argument was that even if a standard of proof operated without any onus of proof, that standard could not be informed by the considerations in Briginshaw, which only address findings of fact that had already occurred, rather than assessing risks or the likelihood of facts materialising in some future state of affairs. The appellant relies upon authority which is to the effect that the qualification in Briginshaw cannot relate to the assessment of future risk critical to the required standard of proof in this jurisdiction. The key authority supporting the appellant's submission was the decision of Coldrey J in In the matter of LN in which he said:

It has been held in a number of cases dealing with this that the standard of satisfaction required in s.57(2) is that enunciated in Briginshaw v. Briginshaw [1938] HCA 34; (1938) 60 C.L.R. 336 at 360-1. However, with respect, the Briginshaw approach, whilst appropriate to the assessment of past facts, provides little assistance in the field of forensic clairvoyance. The assessment of future risk which is required by this legislation constitutes a new judicial task. That task is one of determining the nature of any potential risk of endangerment, examining the proposed method of addressing it, and consequently determining the likelihood of such risk becoming a reality. Obviously the greater the potential risk of endangerment the more important it becomes to ensure that measures designed to minimise it are capable of being instituted. It is in this context that a court must be satisfied that the safety of the applicant or members of the public will not be seriously endangered by the granting of leave. Further, given the non-adversarial nature of the enquiry the Court must embark upon, none of the participating parties bears any onus of proof.[100]

93 While Coldrey J was concerned with an application for extended leave under s 57 of the Act, his Honour's view was followed by Balmford J In the matter of TDD as being of general application to matters arising under other provisions of the Act.[101]

94 The appellant in oral argument submitted that Coldrey J was evidently influenced by the reasoning involved with assessing past hypothetical loss or future loss in personal injury cases. The qualification on the civil standard of proof in contexts requiring evaluation of lost commercial opportunities was explained by the High Court in Sellars v Adelaide Petroleum NL:[102]

[T]he applicant must prove on the balance of probabilities that he or she has sustained some loss or damage. However, in a case such as the present, the applicant shows some loss or damage was sustained by demonstrating that the contravening conduct caused the loss of a commercial opportunity which had some value (not being a negligible value), the value being ascertained by reference to the degree of probabilities or possibilities. It is no answer to that way of viewing an applicant's case to say that the commercial opportunity was valueless on the balance of probabilities because to say that is to value the commercial opportunity by reference to a standard of proof which is inapplicable.

95 The qualification in Sellars to the application of the civil standard of proof arises in relation to hypothetical events, past or future, as distinct from actual past events. When assessing a claim for a lost commercial opportunity the plaintiff must establish some loss on the balance of probabilities but in evaluating the chance of whether past or future events would have happened it is not necessary to apply a standard based on the balance of probabilities; damages may be assessed by reference to the prospects even though they be less probable than not.[103]

96 We are with respect unable to agree with the reasoning of Coldrey J. A court in proceedings such as these is not concerned with assessing the likelihood of a risk of endangerment 'becoming a reality.' It is concerned, for the purposes of s 40(1)(c), with determining the existence and extent of any present risk of endangerment. The assessment of such a likelihood does not, with respect, constitute a novel judicial task and overlooks the jurisprudence pertaining to common judicial assessments of dangerousness, among other things.[104] The reasoning in LN conflates a finding as to the existence of risk, which requires satisfaction to the civil standard of proof, with an assessment of the likelihood of the risk materialising, which may be significantly less probable than not.

97 In the context of a major review under s 35 of the Act, Eames J in Percy discussed the impact of the principles in Sellars and similar cases on the standard of proof subject to the gloss in Briginshaw.[105] His Honour cited various authorities that applied a civil standard of proof, subject to the gloss in Briginshaw, both within the jurisdiction governed by the Act and outside it.[106] Recognising that the judge must have regard not only to past known events but also to the possibilities of future events Eames J said that the question of risk of a future event happening, need not be resolved on the balance of probabilities before being taken into account. He referred to the difficulties of making predications as to the likelihood of violent conduct. He also concluded that the Act enabled the judge to approach the task by applying the standard of balance of probabilities, and that Briginshaw must necessarily have application.[107]

98 There is also other authority to the effect that the principle in Briginshaw is to be applied in proceedings such as these. For example Kaye J in PL required 'cogent evidence' to enable him to be 'satisfied to a comfortable degree'.[108] That line of authority was followed by the judge below, and it is in our opinion, entirely correct for his Honour to have done so.[109] A court may decide the criteria in s 40(1)(c) is met because of a mathematically improbable, but nonetheless sufficient likelihood of endangerment, provided that at the time of its decision it is satisfied that such a likelihood actually exists, or has in fact existed, on the balance of probabilities and subject to the principle in Briginshaw.

The application of the Evidence Act 2008 - whether Briginshaw applies

99 Before addressing the appellant's third argument it is necessary to consider two threshold questions, neither of which were explored in any detail by the parties, but both of which bear upon whether s 140 of the Evidence Act can apply.

100 Section 140 of the Evidence Act is in the following terms:

(1) in a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities

(2) Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account:

(a) the nature of cause of action or defence; and

(b) the nature of the subject matter of the proceedings; and

(c) the gravity of the matters alleged.

101 Firstly, it was suggested but without elaboration by the appellant, and was necessarily implied in the Secretary's argument, that these were 'civil proceeding' under s 140(1). Brief argument was directed to whether the requirement that a Court 'must find the case of a party proved' necessarily presupposes the existence of an onus of proof, a matter that was not addressed at any length by the appellant. However, the appellant and the Secretary's arguments implicitly assumed that as a civil proceeding means a proceeding that is not a criminal proceeding under the Evidence Act,[110] and as the present application was not a criminal proceeding,[111] s 140 applied. We do not stay to consider whether that assumption was correct as the matter received inadequate attention in argument. We add however that the counter-argument that these proceedings do not constitute 'civil proceedings' for the purpose of s 140 of the Evidence Act edified the Attorney-General's contention that the statute could not apply and that therefore, the applicable standard of proof in the proceedings was the civil standard at common law, subject to the gloss in Briginshaw.[112]

102 The second threshold issue relates to whether s 8 of the Evidence Act, which was not referred to by the parties, preserves the operation of the provisions of other Victorian Acts such as s 38 of the Act.[113] Section 8 of the Evidence Act provides that the Evidence Act does not affect the operation of the provisions of any other Act. Section 38 of the Act relieves the Court from the obligation to apply the rules of evidence in this jurisdiction. In these circumstances, a question arises as to whether s 140 does apply to proceedings such as these the subject of this appeal. However, for the reasons which hereafter appear, it is not necessary to finally decide these threshold questions. We shall assume, without deciding, that s 140 may apply.

103 That said, we pause to note that if the statute does not apply, we agree with the Attorney-General's submission that the common law principle as to the civil standard of proof, subject to the principle in Briginshaw, would apply to proceedings of this nature. The legislative intent behind transferring decisions relating to revocation of supervision orders to the judiciary was to ensure a level of formality and assessment of proof that was otherwise absent in the decision making process.[114] Furthermore, given the seriousness of the findings of fact required to reach such a decision, that standard of proof must be responsive to the gravity of the facts in issue and the consequences of the ultimate decision. For such reasons, the line of authority emerged which supports the application of a civil standard of proof to matters within this jurisdiction, subject to the gloss in Briginshaw.

Whether s 140 precludes a standard of proof that requires actual persuasion or belief by the fact finder

104 We are equally unpersuaded by the appellant's third contention that if these proceedings should be decided on the basis of the civil standard of proof set out in s 140 of the Evidence Act, the terms of the statute do not permit the application of the principle in Briginshaw. The Secretary contended that the principles in Briginshaw applied but through the statutory prism of s 140(2) of the Evidence Act, which refracted the conceptual precepts underlying Briginshaw. As aforementioned, the Attorney-General submitted that because there is no onus of proof, s 140 of the Evidence Act was inapplicable as it depends upon a party proving its case.

105 The appellant relied upon the 'long-standing controversy' over whether the civil standard of proof requires a numerical probability in excess of 50 per cent or a belief amounting to reasonable satisfaction.[115] The appellant contended that by contrast to the common law position, the statutory standard required no more than a numerical probability and did not require an actual belief by the fact-finder, in a subjective sense, that the facts in issue existed on the balance of probabilities.[116] Since the Briginshaw principle reiterated the requirement for actual persuasion by the fact-finder,[117] Briginshaw could not supplement the statutory standard of proof which did not require an actual belief by the finder of fact.

106 The preponderance of authority at common law is that the civil standard is not treated merely as a mathematical probability[118] but as requiring actual satisfaction as to the occurrence or existence of the fact in issue. Dixon J had emphasised in Briginshaw that:

when the law requires the proof of any fact, the tribunal must feel actual persuasion of its occurrence or existence before it can be found. It cannot be found as a result of a mere mechanical comparison of probabilities independent of any belief in its reality... it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal ...[119]

107 This statement by Dixon J was approved by the majority (Dixon, Evatt and McTiernan JJ) in Helton v Allen.[120] Similar observations were made by Dixon CJ in Jones v Dunkel[121] where his Honour said:

[t]he facts proved must form a reasonable basis for a definite conclusion affirmatively drawn of the truth of which the tribunal of fact may reasonably be satisfied.

108 This passage was cited with approval by Stephen, Mason, Aickin and Wilson JJ in West v Government Insurance Office of NSW[122] and in Girlock (Sales) Pty Ltd v Hurrell[123] by Stephen J[124] and Mason J with whom Brennan J agreed.[125] In Rejfek v McElroy[126] the High Court speaking of proof of fraud said it:

should be clear and cogent such as to induce, on a balance of probabilities, an actual persuasion of the mind as to the existence of a fraud. [127]

109 In Seltsam Pty Ltd v McGuiness[128] Spigelman CJ concluded that the predominant position in Australian case law is that a balance of probabilities test requires a court to reach a level of actual persuasion. This process does not involve a mechanical application of probabilities. Subsequently, in Nguyen v Cosmopolitan Homes,[129] McDougall J (with whom McColl and Bell JJA agreed) reached the same conclusion. McDougall J in the very recent case of Ballard v Multiplex[130] referred to and repeated the conclusion that proof on the balance of probabilities requires a feeling of actual satisfaction. Similarly in Morley & Ors v Australian Securities and Investments Commission[131] Spigelman CJ, Beazley and Giles JJA stated that the 'actual persuasion' should be understood as equivalent to the state of 'satisfaction', as that word is used in s 140. They concluded that in order to be satisfied on the balance of probabilities, within the meaning of s 140, the tribunal of fact must reach an 'affirmative' or 'definite conclusion', or an 'actual persuasion' which turns on the cogency of the evidence adduced before it. These observations were not the subject of any criticism by the majority in the plurality judgment in ASIC v Hellicar; Brown; Gillfilla; Koeffel; Terry; O'Brien; Willcox; and Shafron.[132] However, Heydon J in his separate reasons referred to the further statement in Morley that actual persuasion does not require a belief by the trier of facts. He said:

The Court of Appeal then stated: 'References in the authorities to "actual persuasion" should be understood as equivalent to the state of "satisfaction"... It should not be understood as requiring subjective belief.' After seeking to explain away the contrary opinions of others, their Honours stated: '"persuasion" is not equivalent to "belief"'. Why not? In Ho v Powell Hodson JA was stressing that fact finding on the civil standard of proof does not depend only on the comparison of probabilities in the light of limited evidence. But he was also stressing that it depends on actual persuasion - a state of personal belief. He was saying that that may be unattainable if the materials for decision are slight. His Honour's point, as expounded in his article cited both in Ho v Powell and Whitlam v Australian Securities and Investments Commission, was:

'mathematical probabilities can be based on most general and scanty material, so that it may be unreasonable to act upon such probabilities and, in particular, in our adversarial system, it may be unreasonable to act upon them where the party bearing the onus of proof does not make a reasonable attempt to lead evidence concerning the particular facts.'

This was not a case in which the materials for decision were slight, general or scanty.[133]

110 The written submission of the appellant was to the effect that s 140 does not require 'actual satisfaction' by the finder of fact. He did not make any reference to the more recent controversy over the asserted difference between a state of mind of 'actual persuasion' and 'belief.' Although we doubt that any such distinction can be validly made in the context of the standard of proof, a distinction between these states of mind does not in any event advance the appellant's contention that the concept of 'actual persuasion,' has no scope for operation under s 140. That contention is unsustainable.

111 The Evidence Act [134] by s 9(1) retains the common law of evidence

except so far as this Act provides otherwise expressly or by necessary intendment.

112 As we have shown, the common law has over time elucidated the concept of satisfaction on the balance of probabilities to mean a state of actual persuasion. There is nothing in the language of s 140 to suggest that satisfaction on the balance of probabilities should not be understood as it has been by the strong preponderance of authority at common law.

Section 140(2) reflects the Briginshaw principle

113 The Secretary rightly submitted that there is now a clear line of authority that equates the conceptual effect of s 140(2) with the principle developed in Briginshaw. In Communications, Electrical, Electronic, Energry Information, Postal, Plumbing & Allied Services Union of Australia v Australian Competition and Consumer Commission, Weinberg, Bennett and Rares JJ said:

Even though he spoke of the common law position, Dixon J's classic discussion in Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 at 361-363 of how the civil standard of proof operates appositely expresses the considerations which s 140(2) of the Evidence Act now requires a court to take into account. Dixon J emphasised that when the law requires proof of any fact, the tribunal must feel an actual persuasion of its occurrence or existence before it can be found. He pointed out that a mere mechanical comparison of probabilities independent of any belief in its reality, cannot justify the finding of fact.[135]

114 In dealing only with s 140(2)(c) of the Evidence Act, Beazley, Gilles and Santow JJA in Amalgamated TV Services Pty Ltd v Marsden, said:

It is well accepted that the test to be applied under s 140(2)(c) is the Briginshaw test: see Pedler v Richardson (unreported, NSWSC, Young J, 16 October 1997); Wily v Fitz-Gibbon (unreported, FCA, Hill J, 2 March 1998); WK v SR (1997) 22 Fam LR 592 (Full Court of the Family Court).[136]

115 In order to sustain his submission that Briginshaw cannot apply on the ground that s 140 does not require actual persuasion, the appellant referred only to the following observation of Branson J, in Qantas:

[R]eferences to, for example, 'the Briginshaw standard' or 'the onerous Briginshaw test'... have a tendency to lead a trier of facts into error. The correct approach to the standard of proof in a civil proceeding in a federal court is that for which s 140 of the Evidence Act provides.[137]

116 The error to which her Honour was referring was made plain in the final paragraph of her reasons.[138] It was to emphasise the error adverted to in Rejfek v McElroy[139] by the High Court that

the standard of proof to be applied in a case and the relationship between the degree of persuasion of the mind according to the balance of probabilities and the gravity or otherwise of the fact of whose existence the mind is to be persuaded are not to be confused.[140]

117 In the course of her Honour's reasons she referred with apparent approval to the joint reasons in CEPU v ACCC[141] in the passage to which we have referred. French and Jacobson JJ agreed with what Branson J had generally said as to the Briginshaw test and expressly approved the passage we have set out above from the observations in the joint judgment in Amalgamated TV Services Pty Ltd v Marsden.[142]

118 Branson J had previously expressed the opinion in Employment Advocate v Williamson[143] that s 140(2) of the Evidence Act is intended to reflect the common law position as to the strength of evidence necessary to establish satisfaction on the balance of probabilities. That was in accord with the passage from the joint judgment of the High Court in Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd[144] in which it was said that 'the strength of the evidence necessary to establish a fact or facts on the balance of probabilities may vary according to the nature of what it is sought to prove.'

119 However, in Qantas Branson J did draw attention to the difference between s 140(2) and the Briginshaw principle arising from the terms in which the statutory section is cast.[145] While a fact-finder may take into account a number of considerations for the purposes of informing the statutory standard of proof under s 140(2), he or she must take into account the three specified considerations set out in s 140(2)(a)-(c). While these do not include all the considerations Dixon J proffered as informing the civil standard of proof in Briginshaw, it is open to the fact finder under s 140(2) to take into account additional relevant matters to those specifically identified, such as the inherent unlikelihood, or otherwise, of the occurrence of the matter of fact alleged.[146]

120 The observations in Qantas do not support the appellant's suggestion that there is any conceptual difference between the principle in Briginshaw and the operation of s 140(2). Nothing was said in Qantas that is inconsistent with the joint judgments in the earlier Federal Court decisions to which we have referred.

121 In Morley the New South Wales Court of Appeal after referring to these authorities reached a similar conclusion that s 140(2) of the Evidence Act, 'in large measure encapsulates in statutory form the relevant observations in Briginshaw.'[147] On appeal the plurality in Hellicar[148] summarised this aspect of the Court of Appeal's reasons as follows:

Second, it was said that '[t]he cogency of ASIC's proof of passing the draft ASX resolution must be assessed with regard to the Briginshaw] principles, more correctly s 140 of the Evidence Act, and the nature of the relief claimed by ASIC and gravity of the consequences'.[149]

122 This statement of principle governing the standard of proof was not the subject of criticism. However the plurality found that these principles did not permit the course taken by the Court of Appeal of discounting the cogency of the evidence tendered by ASIC. Heydon J appeared to accept without qualification the respondent's submission that the Briginshaw qualifications to the standard of proof on the balance of probabilities are reflected in s 140(2)(a)-(c) of the Evidence Act.[150]

123 Accepting that the standard of proof expressed in Briginshaw requires actual persuasion on the part of a fact-finder - and that is materially different to an assessment based only on a mere mathematical probability - s 140(2) of the Evidence Act reflects the conceptual principles underpinning that standard. Significantly, nothing was said to cast any doubt on the line of authority to which we have referred that has construed s 140(2) as embracing the principle in Briginshaw. We consider that line of authority plainly correct. In any event, such a view is now so settled that this Court should not now depart from an accepted construction of a uniform legislative provision of the Commonwealth and a number of States.

124 Accordingly, whether it be by virtue of the common law or s 140, the civil standard of proof subject to the principle in Briginshaw is the relevant conceptual standard to which a fact-finder must satisfy him or herself in proceedings of this nature.[151] Mere mechanical comparison of probabilities independent of a reasonable satisfaction will not justify a finding of fact. The fact finder must feel an actual persuasion of the occurrence or existence of the fact in issue before it can be found. Where, as in the present case, the standard of proof is to be applied to circumstantial evidence, satisfaction as to a reasonable and definite inference is required.[152]

125 On appeal, this Court was provided with an updated report dated 2 November 2011 regarding the appellant's condition prepared by his current supervising psychiatrist in accordance with s 41(3) of the Act. The updated report revealed no noteworthy change in prognosis or proposed treatment plan in comparison to the preceding report (dated 12 August 2010) that was before Whelan J. It confirmed that despite the subsequent loss of his long term partner, the appellant remained compliant with his treatment, continued to attend his psychiatric reviews and kept in regular contact with his case manager. His supervising psychiatrist indicated that the appellant reacted 'appropriately' to his loss and had denied any affective or psychotic symptoms. The report went on to note his continued insight into his condition and early warning signs and ongoing engagement with his treating team, supports in the community and family. Psychiatric assessments of the appellant since the hearing of the application at first instance indicated the appellant remained mentally stable and a 'low risk'. The supervising psychiatrist concluded that the appellant's 'current risk of acute endangerment to himself and others is low'.

126 Following the hearing of the appeal the Court requested the Secretary to arrange a further updated psychiatric report of the appellant's mental condition. A report prepared by his supervising psychiatrist dated 23 April 2012 was provided. The report reached the same conclusions as the preceding updated report. It also indicated that since the loss of his long term partner his treating team had been monitoring the potential for decompensation but had expressed no concerns on the issue. The supervising psychiatrist concluded the report by noting:

Given his stable mental health and ongoing engagement with [his treating team] as well as his good insight into his illness and his current low risk to himself and others, it has been decided to decrease his supervision visits at Forensicare to annual should his [supervision] Order be upheld.

127 Accordingly, the further material before this Court only serves to confirm the view that the appellant should be released from his non-custodial supervision order. This Court is entitled to so order under s 34(4)(b) of the Act:

(4) On an appeal against a confirmation of a supervision order, the Court of Appeal may -

(a) confirm the supervision order; or

(b) set aside the supervision order and make any order that the court could have made under s 29, 32, 33 or 35 (as the case requires); or

(c) set aside the supervision order and remit the matter, with or without directions, to the court that made it.

128 Section 33 of the Act entitles a court at first instance to revoke a non-custodial supervision order. However, s 40 requires that before making such an Order, the court must have regard to not only the factors under s 39 and s 40(1) but also those set out in s 40(2). It provides:

(2) The court cannot order a person to be released unconditionally or otherwise release a person from custody under Part 3, 4 or 5, or significantly reduce the degree of supervision to which a person is subject unless it -

(a) has obtained and considered the report of at least one registered medical practitioner or registered psychologist, who has personally examined the person, on -

(i) the person's mental condition; and

(ii) the possible effect of the proposed order on the person's behaviour; and

(ab) in the case of person who is subject to a supervision order, has obtained and considered the report of a person having the supervision of the person subject to the order; and

(b) has considered the report submitted to the court under s 41(1) or (3) (as the case may be); and

(c) is satisfied that the person's family members and the victims of the offence with which the person was charged (if any), have been given reasonable notice of the hearing at which the release or reduction is proposed to be ordered; and

(d) has considered any report of the family members or victims made under s 42; and

...

(e) has obtained and considered any other reports the court considers necessary.

(3) Subs 2(c) does not apply if s 38C provides that notice is not to be given, or need not be given, to a family member or victim.

129 The updated report (dated 11 November 2011) satisfies the requirements under s 40(2)(a), (ab) and (b); and the further updated report (dated 23 April 2012) also satisfies the requirements under s 40(2)(a), (ab) and (e). At the hearing of the appeal the Director provided to the Court an affidavit indicating reasonable notification of the appeal to members of the appellant's family in compliance with s 40(2)(c). No reports were submitted by any of the appellant's family. The affidavit also confirmed the request by the victim's family that the Office of Public Prosecutions not contact them in matters pertaining to the appellant. Pursuant to s 38C, we are therefore satisfied that fresh notification of these proceedings need not have been provided to members of the victim's family. Accordingly, the considerations in s 38C(c) and (d) do not apply to this appeal.

130 We have found specific errors by his Honour in evaluating the risk of danger and in allocating an onus of proof to the appellant. In the event that any of the grounds were made out only one party submitted that the Court should in these circumstances remit the matter to the Trial Division. Given each of (i) the minimal risk that the appellant poses to himself and the community; (ii) the present restrictions on his liberty; (iii) his present circumstances; and (iv) the positions taken by the parties at first instance and on appeal, we see no justification for that course. We consider it consistent with the safety of the community to free the appellant from all restrictions on his autonomy and freedom under the Act. We would order the revocation of the non-custodial supervision order to which the appellant is currently subject.

[7] Ibid here Kyrou J applies the civil standard of proof to s 32 of the Act (regarding variation of non-custodial orders) informed by the principles in Briginshaw.

[11] Victoria, Parliamentary Debates, Legislative Assembly, 8 October 1997, 367 (Ms Gillett).

[12] See for instance s 38 of the Act; RDM v DPP & Ors [1999] VSCA 86; [1999] 2 VR 270.

[14] RDM v DPP & Ors [1999] VSCA 86; [1999] 2 VR 270.

[15] Mooney v James [1949] VicLawRp 6; [1949] VLR 22 at 27 and Footnote 30; G_PI Leisure Corp Ltd v Herdsman Investments Pty Ltd (No. 3)_ (1990) 20 NSWLR 15, 22-23; Stack v State of Western Australia (2004) 29 WAR 526; [2004] WASCA 300, [28]; Rawcliffe v R [2000] WASCA 239; (2000) 115 A Crim R 509.

[17] Counsel assisting generally make submissions concerning the primary issues in the proceedings.

NOM v DPP & Ors [2012] VSCA 198

At a glance

Court

Decision date

Before

Source

Judgment (315 paragraphs)

NOM v DPP & Ors [2012] VSCA 198 (24 August 2012)

Parties

Legislation Cited (9)

Cases Cited (40)